Power & Pipes

Contracting parties sometimes attempt to rely on merger clauses to avoid future claims arising from reliance on extra-contractual representations such as fraudulent inducement. But in Texas, the inclusion of a standard merger clause does not preclude such a claim. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 327 (Tex. 2011).

There are no unimportant North American Electric Reliability Corporation (NERC) reliability standards, but from time to time, NERC and the Regional Entities (Regions) place greater emphasis on certain reliability standards in response to events affecting the grid. With headline-grabbing physical attacks on power substations across the country in recent months, one of NERC’s greatest current priorities is evaluating the effectiveness of its physical security standards, most notably CIP-014.

Choice of law and forum provisions are standard clauses often found buried in the back of a contract, easily overlooked and frequently ignored. Although these provisions do not typically come up unless there is a dispute between the parties, they should not be an afterthought for drafters because they can play a significant role in the outcome of a dispute.

Indemnity clauses can give rise to a duty to defend or duty to indemnify. This post reviews some basics of when such duties arise under Texas, New York, and California law: Can the duty to defend or to indemnify be determined before all losses are tallied?

The US Department of Energy’s (DOE’s) Office of Energy Efficiency and Renewable Energy (EERE) issued a funding opportunity announcement (FOA) on January 27, 2023, on behalf of the Hydrogen and Fuel Cell Technologies Office that makes available $47 million to support the research, development, and demonstration of affordable hydrogen and fuel cell technologies. The FOA further advances the Biden administration’s goals to achieve carbon pollution-free electricity by 2035 and to achieve net-zero emissions by 2050. It also supports the goals of the H2@Scale Initiative, which aims to advance affordable hydrogen production, transport, storage, and utilization, and aligns with DOE’s Hydrogen Shot, which targets affordable clean hydrogen production at $1/kg within the decade.

While no one has a crystal ball for what 2023 will hold for the energy industry, the seemingly widespread support for green technology and clean energy is expected to carry through this year. In our industry outlook, “The Trends—and Traps—That Will Shape 2023,” we highlight some of the major green energy tax credit trends.

The Federal Energy Regulatory Commission (FERC) issued a final rule on January 12 amending its regulations governing the maximum civil monetary penalties assessable for violations of statutes, rules, and orders within FERC’s jurisdiction.

The Biden administration released the US National Blueprint for Transportation Decarbonization (Blueprint) on January 10, 2023, setting forth a strategy for decarbonizing the transportation sector in order to achieve the economy-wide 2030 and 2050 emissions reduction goals.

On January 1, 2023, newly constructed standalone energy storage facilities became eligible for an investment tax credit (ITC) under Section 48 of the Internal Code of 1986, as amended (Code), pursuant to provisions of the recently enacted Inflation Reduction Act (IRA). Storage facilities placed in service before 2023 generally were only eligible for an ITC when constructed as part of a combined renewable generation (typically solar) plus storage facility and the storage system was charged by the paired renewable generation system at least for the 5-year initial operating period. Storage developers and owners will now be able to take advantage of new and significant tax credit opportunities, whether or not the storage system is paired with a renewable generation energy facility.

Later this month, the US Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE) intends to issue, on behalf of the Hydrogen and Fuel Cell Technologies Office, a funding opportunity announcement (FOA) to support the research, development, and demonstration (RD&D) of affordable hydrogen and fuel cell technologies. EERE’s notice stated that the FOA will focus on key hydrogen delivery and storage technologies and durable fuel cell technologies, particularly for heavy-duty trucks to reduce carbon dioxide emissions and eliminate pollution from the tailpipe.